This book comes as a hugh relief. How come? Because if John Riches and Christopher Dancaster had misunderstood the difficult job of new adjudication, heaven help the UK construction industry.
These two authors are adjudicators. Dancaster has been training, testing and failing would-be adjudicators since February 1996. Riches, too, is an RICS and Chartered Institute of Arbitrators interviewer of those who aspire to be adjudicators. Both have done adjudications as adjudicators in real life. Riches has represented several people in adjudication and has felt the pressure of the 28-day time scale as a defendant. If their book was off-beam they would have misled many people. It isn't. Relief.
The book takes the reader through the sections and clauses in the act. It explains adjudication and the Cinderella payment provisions. It explains that all these provisions are required to become part of your construction contract and how, if you don't play the game properly, in comes the Scheme for Construction Contracts. All the paragraphs of the scheme are explained.
Then, in part II, the authors talk about adjudication in practice. They get it right when they remind the reader that this is not a compulsory device. Mediate, arbitrate, litigate, go to war instead, if you like.
They realise that adjudication is about a dispute that has already been rehearsed and only then referred to the referee. It is not an opportunity to dream up new complaints, nor is it a place to ambush the other bloke. Riches and Dancaster explain the jurisdiction limits on the adjudicator and the powers and the duties, clearly. They emphasise that the job of the adjudicator is to inquire into the rights of the parties under the contract. If the quarrel is about facts or law or both, the adjudicator investigates those and is bound to decide according to the contract, and not his whims or sympathies. The only reason to require A to pay B is when B has a contractual right.
As for the ambush, these two adjudicators are conscious of the process having to be fair. They have found a way for the adjudicator to put pressure on the ambusher, although I would simply dismiss the ambusher's claim on the basis that parliament's intention wasn't to create an opportunity to mug the other bloke.
Disputes will never go away; they are best exposed and then managed so as to avoid claims
This pair are realists. Disputes will never go away in a dynamic industry; they are best exposed and then managed so as to avoid claims. Adjudication exposes shenanigans. This is a winner of a book. Buy it.
The Construction Act: A Practical Guide Martin Wood Chandos Publishing, Oxford, £55
The second book on the Construction Act is by Martin Wood. He is a solicitor at Greenwoods at Peterborough. I expect he is kicking himself a tad.
Wood put the final touches to his hard work last December. The problem is that, at that point, damn all had happened since the act got under way last May. There had been a few examples of adjudication, but the race didn't start till January. Appointments that I know of are now running at about two a day. What is more, we have now had two enormously helpful judgments about adjudication. Many of the worries highlighted not only by Wood but by other construction lawyers have turned out to be unfounded. So, the author's important commentary about enforcement is rendered out of date.
The rest of his book is extremely helpful. It is the sort of first-level hand-holding needed by 95% of our industry. Wood resisted the temptation to do an in-depth lawyer's analysis but he at least allowed himself the luxury of one or two criticisms. He gave short shrift to those who think pay-when-certified will fool the act, the courts or adjudicators. It isn't an adequate payment mechanism. He also had a nudge at the ICE, asking if the "matter of dissatisfaction" idea torpedoed compliance with the act.
Tony Bingham is a barrister and arbitrator specialising in construction.